FEDERAL COURT OF AUSTRALIA

Compton v Ramsay Health Care Australia Pty Ltd [2017] FCAFC 221

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 17 January 2018, the appellant file and serve proposed minutes of orders and written submissions (of no more than three pages) in support of those orders.

2.    By 4.00 pm on 25 January 2018, the first respondent file and serve proposed minutes of orders and written submissions (of no more than three pages) in support of those orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The issue raised by this appeal is whether the primary judge erred in concluding that proceedings relating to a creditor’s petition were not stayed pursuant to s 189AAA of the Bankruptcy Act 1966 (Cth).

2    Section 189AAA is located in Pt X of the Bankruptcy Act, which deals with personal insolvency agreements. The section provides, in summary, that if an authority signed by a debtor under s 188 has become effective, proceedings relating to a creditor’s petition are stayed for a period of time as set out in that section. Section 188 of the Act, which is also contained in Pt X, provides, in summary, that a debtor who desires that his or her affairs be dealt with under Pt X without his or her estate being sequestrated, and who satisfies one of the jurisdictional connections with Australia set out in the section, may sign an authority in accordance with the approved form naming and authorising a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor’s creditors and to take control of the debtor’s property. Relevantly for present purposes, a debtor will satisfy the jurisdictional nexus requirements of the provision if he or she is “ordinarily resident in Australia” or “carrying on business in Australia, either personally or by means of an agent or manager”.

3    On 1 June 2017, there was a hearing before the primary judge of a creditor’s petition presented by Ramsay Health Care Australia Pty Ltd (Ramsay Health Care) (the first respondent to this appeal) against the appellant (Mr Compton). At the outset of the hearing, an issue was raised by counsel appearing for Paul Weston (Mr Weston), a registered trustee, as to whether Mr Compton had signed an effective authority under s 188 naming and authorising Mr Weston to call a meeting of Mr Compton’s creditors and to take control of his property, and whether the proceeding was therefore stayed by force of s 189AAA. (Mr Weston is the second respondent to this appeal.) Ramsay Health Care contended that none of the jurisdictional connections referred to in s 188 were satisfied in circumstances where (as was apparent from material that had previously been filed) Mr Compton had moved from Australia to Virginia, United States of America. There were apparent deficiencies in the material relating to the s 188 authority and the primary judge indicated that he was not satisfied that a stay was in place. The hearing of the creditor’s petition then proceeded. At the end of the hearing, judgment was reserved, with an indication that it would be delivered the next day (the matter being urgent, as the creditor’s petition was due to expire on 5 June 2017).

4    During the evening of 1 June 2017, papers were provided on behalf of Mr Weston to the primary judge’s associate, including a “Controlling Trustee Authority” signed by Mr Compton and Mr Weston (the Controlling Trustee Authority) naming and authorising Mr Weston to call a meeting of Mr Compton’s creditors and to take control of his property. Also provided was a “Certificate of Appointment of Trustee” signed by the Official Receiver and dated 1 June 2017 (the Certificate of Appointment of Trustee) to the effect that a s 188 authority had been signed by Mr Compton and that Mr Weston had been appointed as trustee.

5    When the matter was called on for delivery of judgment on 2 June 2017, counsel for Mr Weston contended that the proceeding was stayed by force of s 189AAA. Mr Weston contended that Mr Compton satisfied one or more of the jurisdictional connections referred to in s 188 on the basis that he was “ordinarily resident in Australia” or “carrying on business in Australia”. The material before the Court included an affidavit of Mr Compton in which he stated that: he had no intention of leaving Australia permanently and considered Australia to be his home; and it was his intention to return to Australia with his wife and children as soon as they had dealt with various health issues concerning Mr Compton and his father-in-law.

6    The primary judge held that, on the basis of the material before him, no conclusion could be reached that Mr Compton was “ordinarily resident in Australia” and, further, that no conclusion could be reached that Mr Compton was “carrying on business in Australia”. Accordingly, his Honour concluded that the authority signed by Mr Compton did not satisfy the jurisdictional nexus requirements of s 188 and therefore that no stay was operative under s 189AAA. His Honour proceeded to deliver judgment on the creditor’s petition, making an order that the estate of Mr Compton be sequestrated.

7    For the reasons that follow, in our respectful opinion, the primary judge erred in not concluding that Mr Compton was ordinarily resident in Australia at the time he signed the Controlling Trustee Authority. In our view, the evidence established that Mr Compton was ordinarily resident in Australia at that time. It follows that he satisfied one of the jurisdictional connections referred to in s 188 and the authority he signed was effective (no other basis having been raised to suggest that the authority was not effective). It further follows that proceedings relating to the creditor’s petition were, by force of s 189AAA, stayed for a period of time as set out in that section. It is unnecessary to reach a concluded view as to whether Mr Compton was carrying on business in Australia.

8    It should be noted that the issue concerning s 189AAA was properly raised only when the matter was called on for the delivery of judgment and the primary judge was dealing with the matter in circumstances of urgency. The primary judge did not have the benefit of the detailed submissions that were presented on the appeal. Apart from the issue relating to s 189AAA, no other aspect of the primary judge’s judgment is challenged on appeal.

The procedural background

9    As the primary judge noted in an interlocutory judgment of 30 May 2017, the proceeding has had a somewhat extended litigious history.

10    The following summary of the procedural background is substantially based on the primary judge’s reasons for judgment dated 30 May 2017 in relation to an adjournment application (Ramsay Health Care Australia Pty Ltd v Compton [2017] FCA 612) (the May Reasons) and the reasons for judgment dated 2 June 2017 that are the subject of this appeal (Ramsay Health Care Australia Pty Ltd v Compton (No 2) [2017] FCA 629) (the June Reasons). We have also drawn on some of the documents in the Appeal Book to which we were taken in the course of the appeal hearing.

11    In June 2015, Ramsay Health Care filed in this Court a creditor’s petition against Mr Compton. Ramsay Health Care originally maintained that Mr Compton owed it $9,810,312.33, that amount being the amount of a judgment entered pursuant to orders of the Supreme Court of New South Wales on 6 March 2015: Ramsay Health Care Australia Pty Limited v Adrian Compton [2015] NSWSC 163.

12    Mr Compton’s liability had arisen by reason of his acting as a guarantor of the liabilities of Compton Fellers Pty Ltd (trading as MediChoice). Ramsay Health Care, MediChoice and Mr Compton had executed a “Distribution and Group Purchasing Agreement” in September 2012. Mr Compton provided a “Guarantee and Indemnity” to Ramsay Health Care in respect of the Distribution and Group Purchasing Agreement in November 2012. MediChoice went into liquidation in July 2014.

13    In July 2015, Mr Compton filed an interim application seeking (among other things) an order that this Court “go behind” the Supreme Court judgment. That order was resisted. Part of the evidence then relied upon by Mr Compton was an affidavit sworn by Anna Stevis on 4 September 2015 setting forth a detailed account of the moneys she claimed were owing by Ramsay Health Care to MediChoice. Ms Stevis was the former General Manager and a Director of MediChoice.

14    In November 2015, the primary judge concluded that the circumstances presented did not enliven the power to “go behind” the judgment and, even if they had, the discretion should be exercised to decline to do so: Ramsay Health Care Australia Pty Ltd v Compton [2015] FCA 1207. Leave to appeal from that decision was granted and the appeal was allowed in August 2016: Compton v Ramsay Health Care Australia Pty Ltd (2016) 246 FCR 508. Special leave to appeal from the decision of the Full Court was granted on 10 March 2017: Ramsay Health Care Australia Pty Ltd v Compton [2017] HCATrans 55. The hearing was expedited and on 4 May 2017, by “[a]t least a majority”, the High Court of Australia dismissed the appeal: Ramsay Health Care Australia Pty Ltd v Compton [2017] HCATrans 95. (The reasons for judgment of the High Court were published later, in August 2017: Ramsay Health Care Australia Pty Ltd v Compton (2017) 345 ALR 534.)

15    Following the decision of the High Court on 4 May 2017, the matter was relisted before the primary judge as a matter of some urgency. The urgency arose by reason of the fact that (as noted above) Ramsay Health Care’s creditor’s petition was due to expire on 5 June 2017.

16    Mr Compton’s contention before the primary judge was that, rather than MediChoice being indebted to Ramsay Health Care, it was in fact Ramsay Health Care that owed MediChoice money.

17    The matter came back before the primary judge on the following dates:

(a)    10 May 2017: a timetable was set for evidence and written submissions to be filed and served and the matter was set down for hearing on 29 May 2017;

(b)    23 May 2017: the manner in which Mr Compton proposed to question the judgment debt was then canvassed in a preliminary manner, the matter being stood over to 26 May 2017; and

(c)    26 May 2017: for the hearing of an interim application filed on that day. An order was made appointing Amy Compton (Mrs Compton), the wife of Mr Compton, as his litigation representative. An application for an adjournment was stood over part-heard to 30 May 2017, to permit a further opportunity to adduce evidence in relation to the adjournment application. The 29 May 2017 hearing date was vacated and the matter was tentatively listed for final hearing on 1 June 2017.

18    On 30 May 2017, the primary judge dismissed Mrs Compton’s application for an adjournment of the hearing of the creditor’s petition: see the May Reasons.

19    On Thursday, 1 June 2017, the hearing of the creditor’s petition took place.

20    At the outset of the hearing, Mr Svehla of counsel announced an appearance on behalf of Mr Weston. (Although Mr Svehla appeared for Mr Compton at the hearing of the appeal, he appeared for Mr Weston at the hearings before the primary judge on 1 and 2 June 2017.) Mr Svehla said that Mr Weston had accepted an appointment as a controlling trustee under the personal insolvency provisions of the Bankruptcy Act. Mr Svehla referred to s 189AAA of the Act and indicated that the proceeding may be stayed by virtue of that section.

21    Ms Perry, the solicitor acting for Mrs Compton, submitted that her client’s position had been “usurped” by the appointment of Mr Weston and she therefore proposed to take no further part in the matter.

22    Senior counsel for Ramsay Health Care drew attention to the jurisdictional connections referred to in s 188 of the Bankruptcy Act and contended that none of these was satisfied. He referred to an affidavit of Ms Perry dated 25 May 2017 (filed in connection with the application for Mrs Compton to be appointed as Mr Compton’s litigation representative), which stated that Mr Compton had moved to Lynchburg, Virginia. Senior counsel also referred to the requirements of s 188(2C) and (2E) and submitted that there was no evidence that these requirements were satisfied. Mr Svehla accepted that he was not in a position to establish those matters at that time. The primary judge indicated that, on the basis of the material before him and in light of Mr Svehla’s concessions, he was not satisfied that a stay was in place, but that if Mr Weston wanted to renew his application (in effect, for a declaration that the proceeding was stayed by force of s 189AAA) during the course of the day, he could do so. (At the hearing of the appeal, we were told by Mr Svehla (now acting for Mr Compton) that the authority that had been signed by Mr Compton before the hearing on 1 June 2017 did not utilise the correct form. Accordingly, for present purposes, that document can be put to one side.)

23    Ms Perry (for Mrs Compton) then made a new application for an adjournment of the hearing of the creditor’s petition. His Honour refused that application on the basis that the circumstances remained substantially the same as they had been on 30 May 2017. Ms Perry then said that she was instructed to withdraw the consent of Mrs Compton to act as the litigation representation of Mr Compton. No explanation for this withdrawal was provided, in circumstances where Mrs Compton had indicated her willingness to so act only a matter of days previously. The primary judge indicated that: if leave was required for Mrs Compton to withdraw, such leave would not be forthcoming; and if leave was not required, the hearing of the creditor’s petition would continue in Ms Perry’s absence. Ms Perry was invited to remain in Court to provide such assistance as she was able to provide, but she declined the invitation and withdrew.

24    The hearing on 1 June 2017 then proceeded to deal with the question whether the discretion to make a sequestration order should be exercised. This involved “going behind” the judgment of the Supreme Court of New South Wales. At the conclusion of the hearing, judgment was reserved, with an indication that it would be delivered the following morning, being Friday, 2 June 2017.

25    No further documents were provided to the primary judge during business hours on 1 June 2017. However, during the evening of 1 June 2017, a number of emails and documents were sent to the primary judge’s associate. These documents were relied upon before the primary judge on 2 June 2017. We describe these emails and documents below.

26    On 2 June 2017, when the matter was called on for delivery of judgment, Mr Svehla (for Mr Weston) submitted that Mr Weston had been appointed as controlling trustee some time after 3.30 pm on 1 June 2017, and that a certificate had been issued by the Official Receiver to this effect after 5.00 pm on 1 June 2017. Mr Svehla in effect renewed the application for a declaration that the proceeding was stayed by force of s 189AAA. Mr Svehla relied on a bundle of documents that had been emailed to the primary judge’s associate on the evening of 1 June 2017 (which were marked as an exhibit) and an affidavit of Mr Compton sworn on 1 June 2017. No objection was taken to the admission of this material and no application was made to cross-examine Mr Compton. Mr Svehla contended that the material established that Mr Compton was ordinarily resident in Australia. Initially, he conceded that Mr Compton was not carrying on business in Australia. In reply, however, Mr Svehla sought also to rely on this basis. Mr Svehla relied on the Certificate of Appointment of Trustee and reg 13.07 of the Bankruptcy Regulations 1996 (Cth) (set out below). He did not refer to reg 13.10. Senior counsel for Ramsay Health Care made submissions on the documents that had been tendered on behalf of Mr Weston. It was submitted that Mr Compton seemed to be “not only living but working in Virginia” and that the material “suggests that he is ordinarily resident at the moment … in Virginia”.

The evidence before the primary judge

27    The evidence before the primary judge pertaining to the s 189AAA issue comprised:

(a)    an email from Ragu Nith of Pitcher Partners (on behalf of Mr Weston) to the primary judge’s associate dated 1 June 2017 (9.51 pm) and a bundle of documents (paginated 1 to 154) that had been attached to that email; and

(b)    an affidavit of Mr Compton sworn on 1 June 2017 (Mr Compton’s affidavit).

28    The evidence included the Controlling Trustee Authority. The date and time next to Mr Compton’s signature on that document are: 31 May 2017, 9.15 pm. It would appear that the document was signed by Mr Compton in Virginia during the evening of 31 May 2017 (local time in Virginia), which was during the day of 1 June 2017 (Australian Eastern Standard Time). The document named Mr Weston as the controlling trustee. It was also signed by Mr Weston. The date alongside his signature is 1 June 2017. It is convenient to note at this point that the signing of the Controlling Trustee Authority by Mr Compton constituted an act of bankruptcy by him: see s 40(1)(i) of the Bankruptcy Act.

29    The email from Pitcher Partners to the primary judge’s associate dated 1 June 2017 included the following statement:

Please note that at 5.05 pm 1 June 2017, the Official Receiver’s office sent an email to Mr Weston confirming his appointment as Controlling Trustee over the Property of the Debtor: page 2 of the bundle is a Certificate of Appointment confirming Mr Weston’s appointment. Contained between pages 3 to 7 are the other attachments to the Official Receiver’s email at 5.05 p.m.

The email from Pitcher Partners also provided a detailed chronology of the signing of various relevant documents, the provision of documents to the Official Receiver’s office, and communications with the Official Receiver.

30    The bundle of documents attached to that email included the Certificate of Appointment of Trustee. This document (on the letterhead of the Australian Financial Security Authority (AFSA)) stated as follows:

31    The bundle of documents also included a letter from AFSA to MinterEllison, the solicitors acting for Ramsay Health Care, dated 1 June 2017. The letter (expressed as sent on behalf of the Official Receiver) was in the following terms:

Subject: Pursuant to Section 189AAA of the Bankruptcy Act 1966

STAY OF CREDITOR’S PETITION PROCEEDINGS CONTROLLING TRUSTEE AUTHORITY UNDER SECTION 188 OF THE BANKRUPTCY ACT LODGED: Adrian John Compton: NSD660/2015

A search of the NPII (National Personal Insolvency Index) reveals that a Creditor’s Petition against the above named debtor is before the Court. Court reference NSD660/2015.

Please note that a Controlling Trustee Authority was signed by the above named on 31 May 2017 and the Authority and is now effective.

Pursuant to Section 189AAA of the Bankruptcy Act 1966 any further proceedings on the Creditor’s Petition are stayed until the creditors’ meeting is concluded or adjourned.

Please contact me if you have any queries.

32    Mr Compton’s affidavit stated in part as follows:

1.    I was born in Australia. I am an Australian citizen.

2.    I was educated in Australia and have lived in Australia my whole life but for most current temporary residing in the United States of America.

3.    I am a certified practising accountant with CA Australia.

4.    I am married to Amy Compton and have two children. My children are Australian citizens and were born in Australia. My wife, Amy Compton, is an American citizen. My wife and I were married in Australia.

5.    My parents and siblings continue to reside in Australia.

6.    My wife’s father is elderly, frail and unwell and was hospitalised last week following a fall. My wife, children and I are presently staying at my wife’s family home in Lynchburg Virginia with my wife’s family where my wife has been assisting her father and myself.

7.    I do not own or rent a residence in the United States of America.

8.    I have a wide circle of friends in Australia and am in regular telephone and electronic communications with them including daily with certain close friends. I have no intention of severing those relationships.

9    I was a director of Compton Fellers Pty Ltd (in liq).

10.    I was a company director and secretary of an Australian legal practise company from July 2016 to May 2017 when I resigned by reason of illhealth and to reduce my stress levels. I have and continue to provide financial consultancy services to this company.

11.    [omitted for privacy reasons]

12.    I have no intention of leaving Australia permanently and consider Australia to be my home. It is my intention to return to Australia with my wife and children as soon as we have dealt with health issues concerning myself and my father in law.

13.    My wife is the registered proprietor of our family home at [omitted for privacy reasons], Mosman. Upon my return to Australia it is my intention to reside in that property.

14.    I have bank account with National Australia Bank in Australia.

15.    I have superannuation in Australia.

16.    I am providing financial consultancy services to each of James McConvill & Associates who have 9 offices throughout Australia dealing with Australian clients and dealing with Australian issues which I undertake electronically and by telephone.

17.    I have filed all tax returns in Australia as an Australian taxation resident, the last of which was for the financial year ended 30 June 2016.

18.    I understand that in this 2017 income tax year I consider myself to be a resident of Australia and will be filing a taxation return. I anticipate that will continue for the 2018 income tax year.

19.    I am also undertaking some part time delivery driver tasks when I am well enough. I do not have a full time job in the United States.

…

22.    I have no intention that my children be permanently moved to the USA. It is my intention that my children will be educated in Australia.

33    The parties proceeded before the primary judge on the basis that regard could also be had to the affidavit of Ms Perry sworn on 25 May 2017. This affidavit indicated that Mr Compton had moved to Virginia by October 2016 and included the following:

4.    On 24 May 2017 I had a telephone conversation with Amy Compton pursuant to which I am informed and verily believe:

…

(c)    Amy Compton and Adrian Compton reside in Lynchburg Virginia and have 2 children aged 8 years of age;

(d)    Amy Compton has moved her family to Lychburg [sic] Virginia, a small town in central Virginia, to be close to her parents to provide assistance to her to care for Adrian Compton and her family; …

The decision of the primary judge

34    In the June Reasons, the primary judge dealt with both the issue concerning s 189AAA and the issue whether a sequestration order should be made. For present purposes, it is sufficient to focus on the part of the Reasons concerning the s 189AAA issue.

35    His Honour noted, at [7] of the June Reasons, that a preliminary obstacle to the Court entertaining the creditor’s petition was said to arise by reason of s 189AAA.

36    His Honour set out s 189AAA and the relevant parts of s 188 at [11] of the June Reasons. After describing the procedural course of this issue, his Honour noted, at [14], that counsel on behalf of Mr Weston had submitted that s 189AAA operated by its own force “to halt any further step being taken in the present hearing”. His Honour then set out an extract from Mr Compton’s affidavit.

37    The primary judge rejected Mr Weston’s submission for the reasons set out at [15]-[19] of the June Reasons, as follows:

15.    For the purposes of s 188(1)(a) of the Bankruptcy Act, no conclusion can be reached that Mr Compton is a person personally present or ordinarily resident in Australia. The expression “ordinarily resident” was explored by Lockhart J in Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198:

To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word “ordinarily” connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of “ordinary residence” for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person’s life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression “ordinarily resident in” connotes some habit of life, and is to be contrasted with temporary or occasional residence: see [Levene v Commissioners of Inland Revenue [1928] AC 217] and [Commissioners of Inland Revenue v Lysaght [1928] AC 234]. As Lord Warrington said in Levene (at 232): “‘Ordinarily resident’ means according to the way a man’s life is actually ordered.” The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.

It depends on the facts of each case whether the debtor is ordinarily resident in Australia at the time of the commission of the relevant act of bankruptcy. At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort.

On the limited materials available to the Court no conclusion can be reached that Mr Compton is “ordinarily resident in Australia”. His intention to return at some future date, and the fact that his wife may be the registered proprietor of a property in Mosman in Sydney, nor the fact that he holds a bank account and superannuation account in Australia, satisfy the requirements as formulated by Lockhart J, albeit not exhaustively.

16.    In support of the contention that Mr Compton was ordinarily resident in Australia, counsel for Mr Weston relied upon the form of the authority submitted by Mr Compton to the controlling trustee which states that his residential address is at the wife’s premises in Sydney. To bolster that submission, reliance was placed upon reg 13.07(1)(a) of the Bankruptcy Regulations 1996 (Cth) which provides as follows

Extract, etc of the Index to be admissible in evidence

(1)    In any proceedings, a document or copy of a document that qualifies under subregulation (2):

(a)     is proof, in the absence of evidence to the contrary, of information on the Index that is stated in it; and

(b)     may be tendered in evidence without further proof.

(2)    A document or copy qualifies if it:

(a)      purports (irrespective of the form of wording used) to be an extract of information on the Index; and

(b)     does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.

17.    For the purposes of that regulation, “evidence to the contrary” is, it is considered, provided by the very terms of Mr Compton’s affidavit. Moreover, the connections which Mr Compton has with the United States lend some support to a conclusion that he is not ordinarily resident in Australia. That material included details as to his present employment with the United States Postal Service where he apparently has regular employment and is in receipt of regular income in Virginia.

18.    Although reliance on s 188(1)(c) was initially disclaimed by counsel on behalf of Mr Weston, it was belatedly relied upon. Again, however, no conclusion can be reached that Mr Compton is “carrying on business in Australia”. His affidavit merely states that he is “providing financial consultancy services” with no details provided as to the frequency or regularity with which any services have been provided in the past or even details as to the last occasion on which any such service was provided. The materials made available by the trustee also indicate that whatever services may be being rendered by Mr Compton, those services were being rendered “remotely” and “from Virginia”. Reliance upon s 188(1)(c) is rejected.

19.    It is accordingly concluded that any “authority” signed by Mr Compton has not “become effective” (s 189AAA(1)) and that there is no stay operative such that Ramsay Health Care cannot further pursue the hearing of its Creditor’s Petition.

38    His Honour then considered whether a sequestration order should be made. This involved “going behind” the judgment of the Supreme Court of New South Wales. His Honour concluded (at [54]) that the calculations of Ms Stevis (put forward on behalf of Mr Compton at an earlier stage of the proceeding) did not expose any reliable basis upon which the Court could conclude that Ramsay Health Care owed money to MediChoice. His Honour also concluded (at [71]) that the calculations undertaken by Paul Fitzmaurice (on behalf of Ramsay Health Care), and his evidence, provided a sufficiently certain factual foundation for a finding that Mr Compton was indebted to Ramsay Health Care for a sum of not less than $5,000 and (most probably) in excess of $5,099,870.89. No challenge is made to these parts of the June Reasons.

39    The orders made by the primary judge on 2 June 2017 were as follows:

1.    Pursuant to s 136 of the Evidence Act 1995 (Cth), the use of the affidavit of Anna Stevis sworn 4 September 2015 (Exhibit 5), the affidavit of Graham Baker sworn 31 May 2017 (Exhibit 6) and the spreadsheet marked Exhibit 7 be confined to evidence of the claims made, but not evidence of the supporting factual basis of the claims.

2.    The estate of Adrian John Compton be sequestrated under the Bankruptcy Act 1966 (Cth).

3.    The Applicant Creditor’s costs be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966 (Cth).

4.    Order 2 is stayed until 4:00pm on 2 June 2017.

40    It was also noted that a “consent to act as trustee” form signed by Barry Taylor had been filed.

The appeal

41    By notice of appeal dated 4 June 2017, Mr Compton appeals from all of the orders made on 2 June 2017. It seems that, notwithstanding the appointment of Mrs Compton as the litigation representative of Mr Compton and the absence of any order altering that position, the proceeding has been conducted since 2 June 2017 on the basis that it is open to Mr Compton (through his lawyers) to participate directly in the appeal. The appeal hearing proceeded on this basis.

42    The notice of appeal contains the following grounds:

1.    By no later than 5.05pm on 1 June 2017, the Second Respondent was appointed the controlling trustee of the estate of the Appellant for the purposes of Part X of the Bankruptcy Act 1966 (Cth) (“Act”) pursuant to a legally valid and effective authority under section 188 of the Act executed by the Appellant at about 9.15pm on 31 May 2017 in Virginia USA (USA Time) and consented to, and signed, by the Second Respondent in Sydney between 11.43am and 3.18pm on 1 June 2017 (Australian Eastern Standard Time) (“Controlling Trustee Authority”).

2.    Pursuant to section 189AAA(1) of the Act, by no later than 5.05pm on 1 June 2017 (Australian Eastern Standard Time), the proceeding relating to the creditors petition which the First Respondent presented against the Appellant, as debtor, was stayed until the conclusion or adjournment of the meeting of the Appellant’s creditors to be called by the Second Respondent, as controlling trustee, under the Controlling Trustee Authority within 25 working days of 1 June 2017 (Australian Eastern Standard Time).

3.    By reason of the statutory stay of the proceeding pursuant to section 189AAA(1) of the Act, his Honour Justice Flick ought not to have:

(a)    continued to prepare reasons for judgment after about 5.05pm on 1 June 2017 (Australian Eastern Standard Time);

(b)    delivered reasons for judgment on 2 June 2017 (Australian Eastern [Standard] Time);

(c)    made:

(i)    orders 1 to 4;

(ii)    notations 1 and 2,

on 2 June 2017 (Australian [Eastern] Standard Time).

4.    His Honour Justice Flick erred in holding that the Controlling Trustee Authority was not legally valid and effective on the basis that, on 1 June 2017 (Australian Eastern Standard Time), the Appellant:

(a)    was not ordinarily resident in Australia within the meaning of section 188(1)(a) of the Act;

(b)    was not carrying on business in Australia within the meaning of section 188(1)(c) of the Act.

5.    His Honour Justice Flick erred in failing to have proper regard, and give sufficient weight, to the Certificate of Appointment of Trustee dated 1 June 2017 signed by the Official Receiver (Australian Eastern Standard Time) appointing the Second Respondent as the controlling trustee of the estate of the Appellant (“Certificate”), as, pursuant to Regulation 13.07(1)(a) of the Bankruptcy Regulations 1996 (Cth), the Certificate was proof, in the absence of evidence to the contrary, of information on the Index that is stated in it.

43    Although expressed as five grounds, the appeal essentially raises a single issue, namely whether the primary judge erred in concluding that the proceedings relating to the creditor’s petition were not stayed pursuant to s 189AAA of the Bankruptcy Act.

44    On 9 June 2017, Mr Compton filed an interlocutory application in relation to the appeal. By paragraph 3 of the interlocutory application, Mr Compton sought orders extending the time periods for doing certain things under Div 2 of Pt X of the Bankruptcy Act in relation to his affairs, estate and property in the event that, upon the determination of the appeal, it was held that there was in place a stay, pursuant to s 189AAA, of the creditor’s petition. On 15 June 2017, the primary judge made an order that paragraph 3 of Mr Compton’s interlocutory application be stood over for determination by the Full Court as part of the appeal.

45    During the course of the hearing of the appeal, a question arose as to whether further steps pursuant to the sequestration order should be stayed pending the determination of the appeal. Subsequently, by email dated 27 July 2017, the Court was informed by the solicitors acting for Mr Taylor that he undertook not to take any further steps in relation to the sequestration of Mr Compton’s estate until the resolution of the appeal.

The key relevant statutory provisions

46    Part X of the Bankruptcy Act deals with personal insolvency agreements. Division 1 deals with interpretation and comprises ss 187 and 187A. Section 187(1) relevantly provides that, in Pt X, unless the contrary intention appears:

controlling trustee, in relation to a debtor whose property is subject to control under Division 2, means the person who is the controlling trustee under section 188 or 192.

debtor means a person who is insolvent.

47    Division 2 of Pt X, comprising ss 188-211, deals with the meeting of creditors and the control of debtor’s property. Section 188 relevantly provides as follows:

(1)    A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated and:

(a)    is personally present or ordinarily resident in Australia;

(b)    has a dwelling-house or place of business in Australia;

(c)    is carrying on business in Australia, either personally or by means of an agent or manager; or

(d)    is a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

may sign an authority in accordance with the approved form naming and authorising a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor’s creditors and to take control of the debtor’s property.

(2)    An authority signed by a debtor under this section is not effective for the purposes of this Part unless:

(a)    if the person authorised is a registered trustee or solicitor—the person has consented in writing to exercise the powers given by the authority; and

(aa)    if the person authorised is the Official Trustee—an Official Receiver has given the debtor written approval to name the Official Trustee in the authority.

(2AA)    If the person authorised is a registered trustee or a solicitor, then, before the person consents to exercise the powers given by the authority, the person must give the debtor the information prescribed by the regulations.

…

(2A)    The regulations may prescribe the circumstances in which a person (other than the Official Trustee or a registered trustee) is ineligible to act as a controlling trustee under this Part.

(2B)    An authority signed by a debtor under this section is not effective for the purposes of this Part if, at the time the authority is signed, the person authorised:

(a)    is not the Official Trustee or a registered trustee; and

(b)    is ineligible, under the regulations, to act as a controlling trustee under this Part.

(2C)    If the person authorised is a registered trustee or solicitor, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before the person authorised consents to exercise the powers given by the authority, the debtor gives to the person authorised:

(a)    a statement of the debtor’s affairs; and

(b)    a proposal for dealing with them under this Part.

Note:    Section 6A sets out requirements for statements of affairs.

…

(2E)    A proposal for dealing with the debtor’s affairs under this Part must include a draft personal insolvency agreement.

Note:    Section 188A sets out requirements for personal insolvency agreements.

(3)    An authority under this section that is effective for the purposes of this Part is not revocable by the debtor.

…

(5)    A registered trustee or solicitor who consents to exercise the powers given by an authority must, within 2 business days of consenting, give a copy of:

(a)    the authority; and

(b)    the debtor’s statement of affairs;

to the Official Receiver.

(6)    When an authority becomes effective, the person authorised by it becomes the controlling trustee.

The four alternative jurisdictional connections referred to in s 188(1) mirror those contained in s 43(1) of the Bankruptcy Act, which confers jurisdiction to make a sequestration order. In the case of s 43(1), the jurisdictional nexus must exist at the time when the act of bankruptcy was committed. See also ss 55(2A), 57(2A), 244(6) and 247(2), which incorporate the same four alternative jurisdictional connections.

48    Section 188A deals with the personal insolvency agreement. The section provides, among other things, that a personal insolvency agreement is a deed that: is expressed to be entered into under Pt X; and complies with the requirements set out in s 188A(2).

49    Section 189 deals with control of the property of a debtor who has given an authority under s 188. Section 189 provides:

(1)    When an authority given by a debtor under section 188 becomes effective, the property of the debtor becomes subject to control under this Division.

(1A)    The control continues until one of the following events happens:

(a)    the creditors resolve at a meeting called under this Part that the property cease to be subject to control;

(b)    the debtor and a trustee execute a personal insolvency agreement following a special resolution of creditors;

(d)    4 months pass since the authority under section 188 became effective;

(e)    the Court, under section 208, releases the property from control;

(f)    the debtor becomes a bankrupt;

(g)    the debtor dies.

(1B)    The trustee must notify the Official Receiver in writing within 7 days after the trustee becomes aware that the control has ended because of an event specified in subsection (1A).

(2)    A debtor whose property is subject to control under this Division:

(a)    shall not remove, dispose of or deal with any of his or her property except with the consent of the controlling trustee;

(b)    shall furnish to the controlling trustee such information with respect to any of the debtor’s examinable affairs as the controlling trustee requires; and

(c)    shall comply with any direction given to him or her by the controlling trustee with respect to his or her property or affairs.

Penalty: Imprisonment for 12 months.

(3)    A disposal of, or dealing with, property by a debtor in contravention of subsection (2) is not invalid by reason only of that contravention.

50    Section 189AAA provides as follows:

(1)    If:

(a)    an authority signed by a debtor under section 188 has become effective; and

(b)    either:

(i)    a creditor’s petition was presented against the debtor before the authority became effective; or

(ii)    a creditor’s petition is presented against the debtor after the authority became effective but before the first or only meeting of the debtor’s creditors called under the authority;

proceedings relating to that petition are, by force of this subsection, stayed until:

(c)    the conclusion of the meeting; or

(d)    the adjournment of the meeting;

whichever is the earlier.

(2)    This section does not limit subsection 206(1).

51    Section 189A provides for a report and written declaration to be prepared by a controlling trustee. Sections 190 and 190A deal with the duties and powers of a controlling trustee.

52    Section 204 deals with resolutions that may be made by creditors at a meeting called in pursuance of an authority under s 188. Section 206 provides that the Court may adjourn the hearing of a creditor’s petition in circumstances where a meeting of creditors has passed a resolution requiring the debtor to execute a personal insolvency agreement.

53    Division 3 of Pt X, comprising ss 215-232, contains general provisions relating to personal insolvency agreements.

54    The Bankruptcy Regulations are also relevant to the issue raised by the appeal. Regulation 1.03 defines “the Index” as meaning the National Personal Insolvency Index established by reg 13.02(1).

55    Part 13 of the Bankruptcy Regulations relates to the Index. Regulation 13.02 provides as follows:

(1)    For the purposes of the definition of National Personal Insolvency Index in subsection 5(1) of the Act, there is established an electronic index to be known as the National Personal Insolvency Index.

(2)    The Inspector-General has responsibility for the operation of the Index.

(3)    Each Official Receiver is to maintain the Index on behalf of the Inspector-General.

56    Regulation 13.07 appears in the extract from the June Reasons set out at [37] above. In his appeal submissions, Mr Compton also seeks to rely on reg 13.10, which provides as follows:

13.10    Information extracted from the Index to be evidence

Information extracted from the Index is evidence, in the absence of proof to the contrary, of the truth of the information.

57    Schedule 8 to the Bankruptcy Regulations is headed “Information on the National Personal Insolvency Index”. The schedule sets out, in the form of a table, the information that is to be entered on the Index (reg 13.03). Of present relevance is item 24 in the table. We set out the headings in the table and then item 24:

The submissions

58    Mr Compton submits that the primary judge erred in finding, at [15] of the June Reasons, that no conclusion could be reached that Mr Compton was “ordinarily resident in Australia” at the time he signed the Controlling Trustee Authority. Mr Compton relies on the Certificate of Appointment of Trustee and the effect of reg 13.07 of the Bankruptcy Regulations. He submits that “evidence to the contrary”, as referred to in reg 13.07, at the very least will be “evidence to the opposite effect”: see Director of Public Prosecutions (Vic) v Cummings (2006) 46 MVR 84; [2006] VSC 327 at [35]; applied in Agar v McCabe (2014) 67 MVR 81; [2014] VSC 309 at [18]; Agar v Petrov [2015] VSC 168 at [18]. He submits that, in the face of the evidentiary effect of the certificate, it was not open to the primary judge to find that no conclusion could be reached. In oral submissions, reliance was also placed on reg 13.10.

59    Further, Mr Compton submits that his affidavit and the documentary evidence established that he was ordinarily resident in Australia. He submits that the Official Receiver, in issuing the Certificate of Appointment of Trustee, had before him much of the relevant information. It is submitted that, contrary to the primary judge’s finding that “evidence to the contrary” was provided by the very terms of Mr Compton’s affidavit, that affidavit provided additional support for the conclusion of the Official Receiver that Mr Compton was ordinarily resident in Australia. Mr Compton submits that the primary judge failed to have regard, or alternatively failed to give proper weight, to the following legal principles:

(a)    While Mr Compton is currently residing in Virginia, USA, he can be ordinarily resident in more than one place at a time: Battenberg v Restom (2007) 5 ABC(NS) 533; [2007] FCAFC 195 at [11].

(b)    Notwithstanding Mr Compton’s absence from Australia, a continuing link to Australia may establish that Mr Compton is ordinarily resident in Australia: Turner v Trevorrow (1994) 49 FCR 566 at 575; applied in Battenberg v Restom at [12].

(c)    The test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose: Logue v Hansen Technologies Ltd (2003) 125 FCR 590 at [26]; applied in Battenberg v Restom at [35].

(d)    Whether Mr Compton, at the time he departed Australia and while temporarily absent from Australia in Virginia, intends to return to live in Australia is relevant to determining whether Mr Compton is ordinarily resident in Australia during this temporary absence: Napiat Pty Ltd v Salfinger (No 7) (2011) 202 FCR 264 at [75].

60    Further, Mr Compton submits that the primary judge erred in finding, at [18] of the June Reasons, that no conclusion could be reached that Mr Compton was carrying on business in Australia. It is submitted that the primary judge failed to apply, or alternatively failed to properly apply, reg 13.07. It is submitted that, in the absence of evidence to the contrary, this jurisdictional nexus was established by the Certificate of Appointment of Trustee. Further, Mr Compton submits that the evidence establishes that he was carrying on business in Australia, referring to Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 (Re Mendonca) at 260-261; applied in Re Vassis; Ex parte Leung (1986) 9 FCR 518 (Re Vassis) at 525-526; Napiat Pty Ltd v Salfinger (No 7) at [77].

61    Ramsay Health Care submits that: the question whether the debtor was “ordinarily resident in Australia” is a question of fact: Levene v Commissioners of Inland Revenue [1928] AC 217 (Levene); in Akbarali v Brent London Borough Council [1983] 2 AC 309 (Akbarali) at 343-344, Lord Scarman considered what was the natural and ordinary meaning of the expression “ordinary residence” in the United Kingdom, and whether some special meaning should be attributed to the words, concluding that there should not be any special meaning given to them; consistent with this approach, in Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 (Re Taylor), Lockhart J considered that the Bankruptcy Act did not confer any technical meaning on the expression “resident” or “ordinarily resident”; the courts have considered the question to be one of degree and, in particular, one that asks at what point a temporary absence might, if sufficiently prolonged, prevent it being proper to continue to regard the debtor as ordinarily resident in Australia: Re Vassis at 524-525; and it has also been considered that, in today’s era, it is not unusual for people to be ordinarily resident in more than one country and their professional obligations may require frequent travel away from the place or places where they are ordinarily resident: Re Taylor at 197-198; Mathai v Kwee (2005) 3 ABC(NS) 268; [2005] FCA 932 at [124].

62    Ramsay Health Care further submits that: from the outset, the evidence was that, according to Mrs Compton, the Compton family “reside in Lynchburg Virginia”; Mrs Compton also said that she had “moved her family to [Lynchburg] Virginia ... to be close to her parents to provide assistance to her to care for Adrian Compton and her family”; it was this evidence that the primary judge had express regard to at the hearing on 1 June 2017; there was no suggestion in this evidence of the Comptons having gone to Lynchburg on a temporary basis or for only a brief visit; rather, having “moved” the family to and “residing” in Lynchburg, the evidence supported a conclusion from the outset that the family had relocated their living arrangements to the United States; and particularly in light of this evidence, the material relied upon by Mr Compton fell far short of establishing the requirements of s 188(1)(a).

63    In relation to whether Mr Compton was carrying on business in Australia, Ramsay Health Care submits that: the courts have taken a broad view of what constitutes “carrying on business” but, consistent with the language of the provision, the business must be the debtor’s own business and he or she must be carrying on the relevant business on his or her own account: Re Mendonca; it will not be sufficient if the debtor was engaged as an employee in the business of somebody else; in Turner v Trevorrow, the Full Court considered, in the context of ss 43(1)(b)(iii) and 43(1)(b)(iv) of the Bankruptcy Act, that both of these paragraphs were concerned with debtors carrying on business as principals, either as sole traders or in partnership; and the evidence relied upon by Mr Compton in an attempt to establish that he was carrying on business in Australia failed to satisfy this test.

64    In relation to the Certificate of Appointment of Trustee, Ramsay Health Care submits that Mr Compton’s contention overlooks the fact that Mr Compton did not satisfy the preconditions referred to in s 188(1), which meant that he could not sign the relevant authority that led to the issue of the certificate; and moreover and irrespective, the submission ignores the “evidence to the contrary”, including the evidence contained in the affidavit of Ms Perry (as to the Comptons moving to Lynchburg, Virginia) and the evidence of Mr Compton’s employment with, and receipt of, regular income from the United States Postal Service (contained in his statement of affairs, being one of the documents contained in the bundle of documents tendered in evidence).

Consideration

65    The words “ordinarily resident in Australia” in s 188(1)(a) of the Bankruptcy Act bear their ordinary meaning as described (in the context of s 43 of the Act) by Lockhart J in Re Taylor, drawing on cases including Levene, Commissioners of Inland Revenue v Lysaght [1928] AC 234 and Akbarali (referred to in the judgment as R v Barnet London Borough Council; Ex parte Shah). As discussed by Lockhart J (at 197), whether a debtor is ordinarily resident in Australia is a question of fact and degree. Both for the purposes of s 43 and for s 188, the question whether the debtor is ordinarily resident in Australia is to be determined at a particular time. The expression conveys a person’s settled and usual place of abode (see Re Vassis at 524-525 per Burchett J; Re Taylor at 197-198). A person may have two places of residence and may be resident (or ordinarily resident) in each at the same time (Re Taylor at 198). As Lockhart J said in Re Taylor at 198 (in the passage quoted by the primary judge set out above), the concept of “ordinary residence” for the purposes of the Act “connotes a place where in the ordinary course of a person’s life he regularly or customarily lives”.

66    In Re Vassis, Burchett J said (at 525) that if a person’s home is in Australia, a merely temporary absence will not prevent his or her being “ordinarily resident in Australia”. His Honour continued that it is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him or her as ordinarily resident in Australia. Burchett J quoted with approval the following statement of Lord Scarman in Akbarali (at 344): “For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.”

67    Although Re Taylor and Re Vassis arose in the context of s 43 of the Bankruptcy Act, the approach taken is equally applicable in relation to s 188. The jurisdictional connections set out in s 188 are expressed in substantially the same terms as s 43 and there is no reason to think a different meaning was intended.

68    In the present case, Mr Compton had lived in Australia for the whole of his life until his (relatively recent) move to Virginia. He was born in Australia, was an Australian citizen, was educated in Australia, and filed tax returns in Australia as an Australian taxation resident. His children were born in Australia and are Australian citizens. Mr Compton’s wife is the registered proprietor of a property in Australia, which Mr Compton nominates as his family home. The creditor’s petition presented against Mr Compton by Ramsay Health Care was premised on one of the jurisdictional connections in s 43 of the Bankruptcy Act being satisfied at the time of the alleged act of bankruptcy (ie, 21 May 2015). There is no doubt, on the evidence, that Mr Compton was ordinarily resident in Australia at that time. In these circumstances, the question whether Mr Compton was ordinarily resident in Australia at the time he signed the Controlling Trustee Authority was to be approached by asking whether he remained ordinarily resident in Australia (cf Re Taylor at 200). However, the primary judge did not approach the matter in this way. Rather, his Honour appears to have started with the proposition that Mr Compton was now resident in Virginia and then considered whether the evidence established that he was ordinarily resident in Australia, holding that no conclusion to this effect could be reached. In our respectful opinion, this was an erroneous approach in the circumstances, for the reasons we have outlined above.

69    Approaching the matter in the way that we have indicated, the evidence established that Mr Compton moved to Virginia for reasons connected with his health and the health of his father-in-law. These were reasons of a temporary nature. While Mr Compton had worked for the United States Postal Service in Virginia, the extent of this employment was limited (the income from this source, as disclosed in his statement of affairs, was $4,000). To the extent that Mr Compton continued to provide consultancy services, this was mainly, if not entirely, to firms located in Australia. Having regard to these objective matters, as well as the evidence of Mr Compton’s intention as set out in his affidavit, the position that Mr Compton was ordinarily resident in Australia was not displaced. Mr Compton remained ordinarily resident in Australia at the time he signed the Controlling Trustee Authority.

70    It follows that Mr Compton satisfied one of the jurisdictional connections referred to in s 188(1) and the authority he signed was effective (no other basis having been raised to suggest that the authority was not effective).

71    We have reached the above conclusion without reference to the Certificate of Appointment of Trustee and the evidentiary effect of reg 13.07 of the Bankruptcy Regulations. In our view, however, this provides a further and independent basis for reaching the same conclusion. The Certificate of Appointment of Trustee contained statements to the effect that Mr Weston had on 1 June 2017 been appointed as trustee in relation to Mr Compton pursuant to a s 188 authority. As stated in the certificate, this information had been extracted from the National Personal Insolvency Index. By virtue of reg 13.07, the Certificate of Appointment of Trustee was in a proceeding “proof, in the absence of evidence to the contrary, of the information on the Index that is stated in it”, that is, that Mr Weston had on that date been appointed as trustee in relation to Mr Compton pursuant to a s 188 authority.

72    In our view, the words “to the contrary” in reg 13.07 mean “to the opposite effect”. Moreover, to be evidence to the contrary, the evidence must at least be accepted by the tribunal of fact as having some weight. See, albeit in relation to statutory provisions in a different context, Director of Public Prosecutions (Vic) v Cummings at [35]; Director of Public Prosecutions (NSW) v Zhang (2007) 48 MVR 78; [2007] NSWSC 308 at [147]; Agar v McCabe (2015) 72 MVR 130; [2015] VSC 378 at [20]-[23]; cf Machirus v Police [1983] NZLR 764 at 767.

73    The primary judge considered that evidence to the contrary was provided by the “very terms of Mr Compton’s affidavit”. We assume that his Honour was referring to the fact that, as disclosed in Mr Compton’s affidavit, he was residing in the USA. However, we would respectfully disagree with the proposition that Mr Compton’s affidavit constituted “evidence to the contrary”. Mr Compton’s affidavit described the residing in the USA as “temporary”. The fact that he was residing temporarily in the USA raised the question whether Mr Compton remained ordinarily resident in Australia. It was not evidence “to the opposite effect” of the proposition that he was ordinarily resident in Australia. Thus, the evidentiary effect of the Certificate of Appointment of Trustee was not displaced by the evidence in Mr Compton’s affidavit. Nor, for the same reasons, was it displaced by Ms Perry’s affidavit. Given our conclusion based on reg 13.07, it is unnecessary to consider reg 13.10.

74    It follows from the above that proceedings relating to the creditor’s petition were, by force of s 189AAA, stayed until: the conclusion of the first or only meeting of the debtor’s creditors called under the s 188 authority; or the adjournment of the meeting, whichever is the earlier.

75    In light of the above conclusions, it is unnecessary to reach a concluded view as to whether Mr Compton was carrying on business in Australia at the time he signed the Controlling Trustee Authority (and putting to one side the evidentiary effect of the Certificate of Appointment of Trustee). However, we make the following observations. First, the affidavit of Mr Compton did not address the question whether he was carrying on business in Australia in any detail. It contained only a brief statement to the effect that he was providing financial consultancy services to a firm that had nine offices in Australia and dealt with Australian clients and Australian issues. Secondly, insofar as reliance was placed on the documents in the bundle of documents that went into evidence, these provided little additional detail and were, in some respects, confusing or contradictory. Thirdly, the matters relevant to the question whether Mr Compton was carrying on business in Australia were within his knowledge and it was therefore incumbent upon him to provide cogent evidence of such matters if he sought to establish the proposition that he was carrying on business in Australia.

Conclusion

76    In light of the reasons set out above, the appropriate orders would appear to be that: the appeal be allowed; paragraphs 2, 3 and 4 of the orders made by the primary judge on 2 June 2017 be set aside; and, in lieu thereof, it be declared that proceedings relating to the creditor’s petition presented by Ramsay Health Care against Mr Compton are, by force of s 189AAA of the Bankruptcy Act, stayed for the period of time set out in that section. However, we will give the parties the opportunity to file short written submissions on the form of the orders. These submissions should also deal with paragraph 3 of Mr Compton’s interlocutory application dated 9 June 2017 and costs. Unless either party seeks a hearing, we would propose to deal with these matters on the papers.

Associate:

Dated:    21 December 2017